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Osama Bin Laden and the Hague Convention

Photograph: Anjum Naveed/AP

Photograph: Anjum Naveed/AP

Were the actions undertaken that fateful night in May a violation of international law? The answer to that question hinges to a large degree upon what actually happen at the very moment at which a Navy Seal pulled the trigger. In the August 8th issues of The New Yorker, Nicholas Schmidle has a fascinating account of the raid entitled, “Getting Bin Laden :What happened that night in Abbottabad.” As to the instance when Bin Laden was confronted, Schmidle reports:

A second SEAL stepped into the room and trained the infrared laser of his M4 on bin Laden’s chest. The Al Qaeda chief, who was wearing a tan shalwar kameez and a prayer cap on his head, froze; he was unarmed. “There was never any question of detaining or capturing him—it wasn’t a split-second decision. No one wanted detainees,” the special-operations officer told me. (The Administration maintains that had bin Laden immediately surrendered he could have been taken alive.) Nine years, seven months, and twenty days after September 11th, an American was a trigger pull from ending bin Laden’s life. The first round, a 5.56-mm. bullet, struck bin Laden in the chest. As he fell backward, the SEAL fired a second round into his head, just above his left eye.

Of course, Article 23 of of the Annex to the 1907 Hague Convention on the Laws and Customs of War on Land provides:

Art. 23. In addition to the prohibitions provided by special Conventions, it is especially forbidden .    .    .    .

(c) To kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion

.    .    .    .

(HT: Bobby Chesney at Lawfare)


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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.